Land and Environment Court New South Wales Medium Neutral Citation: Loukis v Bayside Council [2020] NSWLEC 1175 Hearing dates: Conciliation conference on 26 February 2020 Date of orders: 14 April 2020 Decision date: 14 April 2020 Jurisdiction: Class 1 Before: Bindon AC Decision: Refer to orders at [11] Catchwords: Section 4.55 modification application – secondary dwellings - conciliation conference – agreement between the parties – orders Legislation Cited: Environmental Planning and Assessment Act 1979 Land and Environment Court Act 1979 Rockdale Local Environmental Plan 2011 State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 State Environmental Planning Policy No 55—Remediation of Land Texts Cited: Rockdale Development Control Plan 2011 Category: Principal judgment Parties: Rhonda Loukis (Applicant) Bayside Council (Respondent) Representation: Counsel: M Sonter (Solicitor) (Applicant) J Cole (Solicitor) (Respondent) Solicitors: Mills Oakley (Applicant) HWL Ebsworth Lawyers (Respondent) File Number(s): 19/259449 Publication restriction: No Judgment 1. COMMISSIONER: This is an appeal brought to the Court under s 8.9 of the Environmental Planning and Assessment Act 1979 (EPA Act) against the refusal by the Bayside Council (Council) of the modification application no. DA-2017/523/B lodged with Council pursuant to s 4.55(2) of the EPA Act (the modification application). In exercising the functions of consent authority on the appeal, the Court has the power to determine the modification application pursuant to ss 4.15 and 4.16 of the EPA Act. 2. The modification application relates to a 742 m2 parcel of land identified as Lot 126 DP 2008 at 38 Russell Avenue, Sans Souci (the site). The modification application seeks to amend a development application (DA-2017/532) as approved by Council on 16 February 2018 for "demolition of all existing structures and construction of a two storey attached dual occupancy with swimming pool and rear secondary dwellings, and Torrens Title subdivision into two lots" (the original approval). The Condition 2 of the original approval listed the approved plans, the majority of which are dated 12 January 2018. 3. The original approval was then modified with the approval of DA-2017/523/A on 29 May 2018 (the first modification application) to delete Condition 32 requiring registration of an easement, which had been inserted in the original consent in error. 4. The modification application, as submitted to Council on 11 September 2019, (DA-2017/523B) sought consent to increase the height of the two secondary dwellings from one to two storeys, with a single garage for each of the secondary dwellings on the ground floor, accessed of Russell Lane. The modification application was refused by Council on 21 February 2019. 5. According to the uncontested Statement of Facts and Contentions prepared by the Council and filed with the Court on 24 September 2019 (SOFC) a Review of Determination application made under s 8.2 of the EPA Act (the s 8.2 application) was lodged with Council on 11 March 2019. The SOFC also states that "The development application was advertised and notified in accordance with the requirements of the Environmental Planning and Assessment Act 1979 and the Rockdale DCP, Part 8 Notification between 18 March 2019 and 3 April 2019. No objections were received during the notification period." The s 8.2 review application was refused by the Bayside Planning Panel on 11 June 2019, and this Class 1 appeal was filed with the Court on 20 August 2019. 6. The Court arranged a conciliation conference under s 34(1) of the Land and Environment Court Act 1979 (LEC Act) between the parties, which was held on 26 February 2020. I presided over the conciliation conference. The conciliation conference commenced with a site view. There were no aural submissions from objectors at the site view. 7. After the conciliation conference, the parties reached an agreement filed with the Court on 18 March 2020 as to the terms of a decision in the proceedings that would be acceptable to the parties (the agreement). The agreement was based on amended plans upon which the parties sought to rely, as prepared by RM Designers and listed in paragraph 2 of the agreement. The main difference with the amended plans is that each of the secondary dwelling parking spaces is no longer provided in an enclosed garage, but rather in a largely open space enclosed on one side and by the floor above. 8. Under s 34(3) of the LEC Act, I must dispose of the proceedings in accordance with the parties' decision if the parties' decision is a decision that the Court could have made in the proper exercise of its functions. The parties' decision involves the Court exercising the function under s 4.16 of the EPA Act to grant consent to the modification application. There are jurisdictional prerequisites that must be satisfied before this function can be exercised. The jurisdictional prerequisites of relevance in these proceedings, and how they are satisfied, are set out in paragraph 9 below. Satisfaction of jurisdiction 1. The relevant jurisdictional matters are: 1. In relation to s 4.55(2)(a) of the EPA Act I am satisfied, based on a comparison of the plans the subject of the original approval and those the subject of the s 34 agreement, that the development to which the consent as modified relates is substantially the same development as the development for which consent was originally granted and before that consent as originally granted was modified. With respect to s 4.55(2)(b) of the EPA Act I note, based on the SOFC, that the application was notified in accordance with the provisions of the Rockdale Development Control Plan 2011 (Rockdale DCP) and there were no submissions received within the notification period. 2. In relation to the Rockdale Local Environmental Plan 2011 (RLEP 2011), I am satisfied that the development as modified is for the same purpose as approved, namely a dual occupancy with secondary dwellings, which is a use permissible with consent in the R3 Medium Density zone. 3. In relation to State Environmental Planning Policy No 55— Remediation of Land (SEPP 55), and in particular cl 7(1) and (2), requiring consideration of any contamination and associated remediation, I note that the modification application does not alter the remediation circumstances applying to and duly considered when the original development application was approved. I am therefore satisfied that there are no additional requirements applicable under SEPP 55. 4. In relation to State Environmental Planning Policy (Building Sustainability Index: BASIX) 2004 (SEPP BASIX) two BASIX Certificates, one for each of the secondary dwellings, being Certificate Numbers 1091215S and 1091224S (both dated 2 April 2020) have been provided. Disposal of proceedings in accordance with the parties' decision: 1. As the parties' decision is a decision that the Court could have made in the proper exercise of its functions, I am required under s 34(3) of the LEC Act to dispose of the proceedings in accordance with the parties' decision. 2. The Court orders: 1. Leave is granted to the Applicant to rely upon the following amended plans: Plan Name Drawing number Revision Date Prepared by Architectural plans Site Plan DA 14 D 17/02/2020 RM Designers Streetscape Elevation – Russell Lane DA 15 C 17/02/2020 RM Designers Palisade Fence and Gate Details DA 16 A 17/02/2020 RM Designers Outbuilding Plans DA 25 D 17/02/2020 RM Designers E W Elevations + Section AA DA 30 D 17/02/2020 RM Designers N S Elevations + Section BB DA 31 D 17/02/2020 RM Designers Driveway Section DA 32 C 17/02/2020 RM Designers Wall Fence Detail DA 33 A 17/02/2020 RM Designers Finishes Schedule DA 42 D 17/02/2020 RM Designers Shadow Diagrams Proposed DA 50 B 28/10/2019 RM Designers Window Schedule DA 60 B 17/02/2020 RM Designers 1. The appeal is upheld. 2. Modification Application no. DA-2017/523/B to modify the approved dual occupancy and secondary dwellings to create a two storey secondary dwelling to each dual occupancy with ground floor parking below the secondary dwelling at 38 Russell Avenue, Sans Souci is determined by approving the modification as set out at Annexure A. 3. As a consequence of (3) above, DA-2017/523 is now subject to the consolidated modified conditions of development consent set out in Annexure B. 4. Pursuant to sections 34(3)(a) and (b) of the Land and Environment Court Act 1979, the parties request the Commissioner dispose of these proceedings in accordance with the terms of the decision set out in paragraph 2 above. …………………………. J Bindon Acting Commissioner of the Court Plans (3.89 MB) Annexure A (31.3 KB) Annexure B (120 KB) ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 15 April 2020